Occupier’s liability and CCTV in a public carpark
In the recent South Australian decision of Cosenza v City of the City of Adelaide  SADC 29, the Court considered the High Court’s decision in Modbury Triangle Shopping Centre Pty Ltd v Anzil  HCA 61 and revisited well established occupier’s liability principles, in assessing an application for a review of a decision for summary dismissal of a claim involving an attack in a public car park.
Mr Cosenza brought proceedings in the Magistrates Court against the Corporation of the City of Adelaide (City), claiming damages arising from an assault upon him by an unknown person on 14 December 2017 in a U-Park carpark, which is owned and operated by the City.
At the time of the assault, CCTV cameras located in the carpark were not operational, resulting in the assault not being captured on film and the assailant not being identified.
Mr Cosenza’s evidence was that he entered the carpark to park his vehicle for the purposes of going to lunch nearby. He says he was induced to use the carpark by the representation that the carpark was safe and had security cameras operating.
Mr Cosenza claimed damages due to his injuries and damage to his vehicle in excess of $2,000. Due to the quantum of the claim, it fell within the Magistrate’s Court Minor Civil jurisdiction, where legal representation usually does not occur.
The City was granted leave to be legally represented on the basis that Mr Cosenza had an extensive legal knowledge and background, as he has a law degree and has appeared as a plaintiff or defendant in some 98 proceedings in State and Federal Courts.
Mr Cosenza alleged that the City:
- was negligent in failing to ensure that the cameras were operational, which, in turn, resulted in him being deprived of the ability to pursue a claim for damages against the assailant directly;
- could not rely on any contractual disclaimer to avoid liability, because no contract existed between him and the City;
- breached its obligations pursuant to sections 18 and 21 of the Australian Consumer Law, in that the signs indicating CCTV cameras as operating constituted misleading and deceptive conduct, as well as unconscionable conduct; and
- breached its obligations pursuant to the Local Government Act 1999 (SA) (LGA).
Following an application by the City for the claim to be struck out or summarily dismissed, Mr Cosenza’s claim was dismissed by the Magistrate.
Mr Cosenza then filed an application for judicial review of the Magistrate’s decision.
District Court Review
Mr Cosenza complained that the Magistrate had erred in law and fact in relation to the findings within the summary dismissal decision.
Mr Cosenza specifically pointed to the representations by the City that it had operational cameras in the carpark, with the consequence that visitors would be secure and that an ability to identify any culprits, assailants or perpetrators for the purposes of taking matters further, would be available should it be necessary. He said that he placed reliance on the signs prior to entering the carpark, as the signs were clearly displayed to him at the time of taking a ticket to enter the carpark, and that he knew of the signs as he had used the carpark before.
Mr Cosenza said that the City knew that the cameras were not operational and did not implement or adopt an alternative approach to keep users of the carpark safe. He submitted that as a result of this, the City was negligent.
The City argued that Mr Cosenza’s claim sought to avoid the principle determined by the High Court in Modbury Triangle by attempting to extend or re-apply the law.
Modbury Triangle involved a claim by a plaintiff assaulted at night time by 3 persons whilst crossing an unlit car park of a shopping centre at which he worked. The car park lights had been switched off, despite the shopping centre still being used. The High Court relevantly found that, due to the unpredictability of criminal behaviour, as a general rule, and in the absence of some special relationship, the law does not impose a duty to prevent harm to another from the criminal conduct of a third party, even if the risk of such harm is foreseeable.
The City submitted that no duty of care of the kind asserted by Mr Cosenza can exist in the circumstances alleged and that Modbury Triangle made it clear a special relationship would be required. It submitted that this is not a situation where there is a close, protective relationship, nor is it a case where one person unequivocally assumes responsibility for the care and safety of another person. The City submitted that a relationship of that kind is an unreasonable burden to place on a party such as the City.
The City’s position was that the mere fact a sign says “CCTV operating in this area”, is not a promise that it is operating 24-hours a day, seven days a week with no failures at any time. Nor is a sign in those terms a promise that in the event footage is captured and kept, it will be available to users of the carpark.
The City submitted there must be a causal link between the legal obligation that falls on the City and Mr Cosenza’s ultimate loss, which in this case was not established. It submitted that all of these events would have happened even if the sign did not exist, that is to say Mr Cosenza would have still entered the car park, would have still been assaulted, and still would have left in fear. There is nothing to suggest that had there been operating cameras, the assault would not have occurred.
Judge O’Sullivan found that Mr Cosenza had attempted to extend the law of negligence by arguing that the principle set out in Modbury Triangle should be extended to include an obligation that an occupier who advertises the availability of CCTV filming, but which is not operating, is in breach of a duty of care to invitees on the premises. That duty would arise where the invitee relied upon its existence at the time of entry in order to identify his assailant for criminal charges and for damages to his vehicle that had not yet occurred.
His Honour did not accept Mr Cosenza’s position and affirmed the Magistrate’s decision that there is no reasonable basis for the Mr Cosenza’s claim in negligence and that that there was no action in contract, equity or for a breach of LGA.
This decision confirmed the limits of occupier’s liability in South Australia. There is no duty for an occupier who advertises the availability of CCTV filming to ensure that the cameras are operational at all times, or that the footage is kept and made available to invitees to the premises.